The Warhammer of Fair Use

Games Workshop (GW), a UK based company, is the author and owner of the Warhammer 40,000 tabletop miniature game, which is also played significantly in the United States. Each set of models, or “army unit,” comes unassembled, requiring the player to assemble and paint the models before playing. The hobby involves substantial creativity from fans; players paint the armies different colors, often use hobby materials to alter the appearance of models, or mix and match different modeling kits. Both the creative element and the cost of the hobby have created a market for selling alternative 3-D prints on third-party websites like ebay or etsy.

GW has had its share of legal battles with third-party vendors selling alternative 3-D prints. In 2012, GW sued a fan for selling alternate Warhammer 3-D printed accessories. The outcome of the case was mixed; the court held that some of the GW designs were especially unique for copyright protection, while others were not. The court granted partial summary judgment for both sides, which notably did not include a final determination on fair use. More recently, in 2023, GW brought 12 claims with the Copyright Claims Board (CCB) against another fan for converting characters in a Warhammer 40,000-affiliated video game into 3-D prints, which the fan sold on Patreon. Despite the lawsuits, many different kinds of alternative 3-D printed models are sold online.

The four-factor test for fair use from Campbell v. Acuff-Rose Music, Inc. can help determine whether the 3-D prints unfairly infringe on GW’s product. The case involved a dispute over whether a commercial parody of a copyrighted song amounted to fair use or was copyright infringement. The court laid out four factors to be considered for fair use: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work, (4) and the effect of the use on the market value of the copyrighted work. The parody added some originality and commentary to the initial work, no more of the song was copied than needed to parody it, and the parody appealed to a different market than the original song.

How the four factors apply to an alternate 3-D print will depend on the nature of the print and the way it is used by a player. For example, some vendors sell 3-D printed tanks of a similar design as the original GW product for players to use as replacements. Others sell various unique-looking heads, shoulder pads, and weapons for players to add to existing GW models without replacing them entirely. For the first factor, GW would want to prove that the purpose and character of the 3-D print is to replace their product with a cost-saving alternative. Conversely, the vendor would want to argue that their product adds a unique creative element to the hobby. Entire models nearly identical to GW’s product, like the tank, are less likely to add a creative element than the unique 3-D printed heads, shoulders, or weapon alternatives. The nature of the copyrighted work, the second factor, does favor GW, as a substantial level of creativity and design go into each model they sell.

The third and fourth factors, evaluating the amount and the way the copyrighted work was used, as well as the effect the alternate use has on the market value of the copyrighted work, will also vary. For example, the alternative 3-D printed heads, shoulder pads, and weapons do copy some of the design of the GW product, but unlike the tank, only copy the design to an extent that allows players to express creativity. Players are also more likely to purchase GW’s product so they can replace certain parts with the alternate heads, weapons, or shoulder pads, whereas the tank would more likely replace the GW product entirely.

Alternate designs and 3-D prints add a lot to the creativity of the hobby and the game, and are likely to remain part of the culture regardless of further legal actions Games Workshop takes. At the same time, Games Workshop puts a substantial amount of effort into their designs and deserves some copyright protection from knockoffs. Where the line should be drawn will depend on the nature of the 3-D print and its appeal to the consumer.

Ben Kanter is a first year student at the American University Washington College of Law, and is an avid fan, player, and hobbyist of the Warhammer 40,000 universe.

Image: Martin23230, WikiProjectWH40k3icon.